Businesses may sometimes choose to dismiss an employee. There are many reasons why decisions like this must be made; some of the most common ones will be discussed in this Legal Kitz blog. Additionally, just as employers have a right to dismiss employees in specific scenarios, employees also possess a right to dispute their dismissal as unfair in specific scenarios, and these will also be explained and analysed.
Valid reasons for dismissing an employee
In Australia, an employee can be dismissed or fired for various reasons, including but not limited to poor performance, serious misconduct, redundancy, and operational reasons. The process for dismissal can differ depending on the reason for termination and the employment contract terms. Here are some general guidelines:
Poor performance
If an employee’s performance is not meeting expectations, the employer should provide clear feedback and support to help the employee improve. If there is no improvement, the employer may begin a performance improvement process, including written warnings, a performance improvement plan, and additional training or coaching. If the employee still does not improve, the employer may consider termination.
Serious misconduct
If an employee has engaged in serious misconduct, such as theft, fraud, or harassment, the employer may terminate their employment immediately without notice or pay in lieu of notice.
Redundancy
If an employer no longer needs an employee’s role to be performed by anyone or the business is facing financial difficulties, they may make the position redundant. Employers are required to follow a consultation process with the affected employee(s) and explore alternative employment options before making a final decision.
Operational reasons
If an employer needs to restructure their business or change the employee’s role due to operational reasons, they may terminate the employee’s employment. Employers must follow a consultation process with the affected employee(s) and explore alternative employment options before making a final decision.
It is important to note that employers must follow the relevant state or federal employment laws and any applicable awards or enterprise agreements when terminating an employee. Employees who believe they have been unfairly dismissed may have a successful claim with the Fair Work Commission.
When can an employee bring an unfair dismissal claim?
In Australia, an employee can bring an unfair dismissal claim if they believe that their dismissal was harsh, unjust, or unreasonable and that it was not a case of genuine redundancy. To bring an unfair dismissal claim, the employee must meet specific eligibility criteria, including:
- The employee must have completed the minimum employment period: The minimum employment period is usually six months for most employees, but it can be longer for some industries or positions.
- The employee must have been dismissed: The employee must have been terminated by the employer, and the termination must not have been a case of genuine redundancy.
- The dismissal must be harsh, unjust or unreasonable: The employee must be able to demonstrate that the dismissal was unfair based on the circumstances leading up to and surrounding the termination.
Employees who believe they have been unfairly dismissed can make a claim to the Fair Work Commission within 21 days of the dismissal. The Fair Work Commission will then investigate the claim and may hold a conciliation or hearing to try to resolve the matter. If the matter is not resolved, the Fair Work Commission may decide whether the dismissal was unfair and, if so, what remedies should be provided to the employee. Remedies may include reinstatement or compensation.
Employers need to follow the correct procedures when dismissing an employee to minimise the risk of an unfair dismissal claim being made against them. Employers should ensure that they have a valid reason for termination, follow the proper consultation and notice requirements, and provide the employee with an opportunity to respond to any allegations made against them.
Legal advice
Businesses can benefit from seeking legal advice to comply with employment laws and avoid an employee’s claim for unfair dismissal. Employees working in a company would benefit from seeking advice if they believe they have been dismissed unfairly or harshly. If you need further assistance or advice regarding casual employment, Legal Kitz would love to help you. We offer free resources and the option to request a free 30-minute consultation for all your employment queries. Our sister company Business Kitz also provides a subscription-based plan with over 150+ legally compliant documents.